Memorandum submitted by the Chief Parking
Adjudicator for London
1. The Parking Adjudicators for London decide
appeals by motorists against Penalty Charge Notices (PCN) issued
by London local authorities (LA) for contraventions relating to:
— certain moving traffic contraventions,
eg yellow boxes, no right turn; and
2. There are 53 part time Parking Adjudicators.
They are judicial office holders and are required to be lawyers
of five years standing.
3. They currently receive over 50,000 appeals
a year, the vast majority of which are parking appeals. They sit
at the Parking and Traffic Appeals Service hearing centre at New
Zealand House, Haymarket. They sit to hear personal appeals from
8 am to 8 pm Monday to Thursday, 8 am to 5 pm Fridays and 9 am
to 1pm on Saturdays. Appellants are given a date and time for
their hearing according to their preferences.
4. Appellants may choose to have their appeal
decided on the papers only rather than at a personal hearing.
THE PROCESS
FOR CHALLENGING
A PCN
5. The Committee's memorandum refers to
the "appeals" process. The statutory process for contesting
liability is as follows:
— If the penalty is not paid in response
to the issue of the PCN within 28 days, the LA issues a Notice
to Owner to the owner.
— The owner may make representations
within 28 days to the LA in response contesting liability.
— The LA must serve notice on the owner
stating whether they accept or reject the representations.
— If the LA rejects the representations,
the owner may appeal within 28 days to the Parking Adjudicator.
It is only the appeal to the Adjudicator that
is properly termed an "appeal". The process of making
representations to the LA is administrative.
6. The Adjudicators consider the process,
which requires the parties to attempt resolution between themselves
before an appeal to the Adjudicator, to be appropriate. Without
it, motorists would be obliged to appeal straight to the Adjudicators.
This would inevitably greatly increase the number of appeals.
7. In 2003-04 0.9% of parking PCNs reached
the appeal stage. However, the appeal rate for LAs varied considerably,
from 2.1% for the highest to 0.2% for the lowest.
8. 29% of appeals were not contested by
LAs. The highest rate per LA was 56%, the lowest 6%. The Adjudicators
do not know why cases are not contested by LAs, although they
understand that in some cases it is because the motorist has produced
new evidence in connection with the appeal.
9. 59% of appeals were allowed. The highest
rate per LA was 76%, the lowest 36%. These figures include the
cases not contested.
10. The Adjudicators do not know why the
figures vary, nor do they suggest that there is a "right"
rate for these figures. It may be, for example, that the figures
are influenced by matters of policy relating to enforcement. Nevertheless,
it is noteworthy that there are such variations and the bare statistics
might well merit further investigation with the aim of spreading
best practice.
RECOMMENDATIONS IN
PARKING ADJUDICATORS'
ANNUAL REPORTS
11. In their annual reports to the Association
of London Transport and Environment Committee the Adjudicators
draw attention to matters of concern that have come to their attention
and make recommendations on good practice arising as a result.
The low overall appeal rate would suggest that the scale of any
problems in the operation of the enforcement system is small;
and, of course, the cases that go to appeal are ones that are
contentious and therefore more likely to be infected with a defect
of some kind. However, the real test of the robustness of the
enforcement process lies not in those PCNs that are routine but
in those the motorist challenges. Every case where the LA does
not follow the correct procedures or wrongly applies the law has
the potential for causing injustice to the motorist. Thus in raising
issues the Adjudicators are concerned more about quality rather
than quantity, and their aim is to encourage improved standards,
to the benefit of both motorists and Local Authorities. It is
also consistent with the Government's initiative on feedback (paragraph
12 below).
The following paragraphs draw attention to recommendations
the Adjudicators have made in recent reports and which remain
pertinent. Passages from the reports are in italics.
12. That all Local Authorities should have
in place arrangements for addressing feedback from the Adjudicators
and taking such action on it as may be appropriate (2003-04 Report)
The Government has put forward proposals for
a comprehensive reform of tribunals and has instituted, through
the Department for Constitutional Affairs, the Tribunals for Users
Programme. As part of this programme, the Government attaches
considerable importance to feedback loops from tribunals to departments
to promote improvements in departmental decision-making.
Local Authorities already receive feedback
from the Adjudicators in a variety of ways: in decisions, by the
Chief Adjudicator drawing their attention to a particular issue,
at user groups, in our annual report. We have, however, no information
about what arrangements, if any, Local Authorities have for considering
and taking action on this feedback. It is clearly desirable for
Local Authorities to have such arrangements, which would give
effect to the Government's policy.
13. Local Authorities should revise their
Notice to Owner to explain their discretion relating to extenuating
circumstances. (2001-02)
Authorities have the power as a matter of discretion
to cancel a PCN at any stage. The Adjudicators said that they
had concerns that not all Local Authorities fully understand
the nature of their discretion to waive penalties in appropriate
circumstances or that all of them approach the exercise of the
discretion in an objective and flexible manner.
The report also said that for authorities
to be able properly to exercise their discretion, motorists must
be aware of the discretion. Unless they are, they are not in a
position to make a fully informed decision whether to pay the
penalty or make representations. In our view, the Notice to Owner,
as well as setting out the grounds on which legal liability may
be challenged, should also explain the discretion. We are not
aware that at present any Notices to Owner do so. Indeed, some
appear positively to discourage representations on mitigation
by including something along the lines of: "excuses such
as . . . will not be accepted".
The issue of the exercise of discretion and
of the motorists being informed of the position is the subject
of a recent Special Report—Parking Enforcement by local
authorities by the Local Government Ombudsman. This report
endorses the Adjudicators' views and commends LAs to "look
critically at their documentation, advice and procedures . . .
to ensure that pleas of mitigation are not unreasonably deterred
and are given proper consideration."
It is important to appreciate that when parking
contraventions were a criminal offence the magistrates' court
could take mitigation into account in deciding the appropriate
penalty. In the decriminalised regime the penalty is fixed and
the Adjudicator has no power to waive or reduce it because of
mitigation.[1]
Under this regime the role of the LA in considering mitigation
is an extremely important one in ensuring that enforcement is,
and is seen by motorists to be, applied fairly. Adjudicators see
many appeals where the grounds of the appeal in fact amount to
no more than mitigation and the motorist feels aggrieved that
their plea of mitigation has not been properly considered.
It should also be understood that cancellation
as a matter of discretion is relevant where there has been a contravention
and therefore liability in law for the penalty. The question for
the exercise of discretion is whether the PCN should be cancelled
even though there is legal liability for the penalty. By contrast,
where the motorist has put forward grounds establishing that there
is no legal liability, cancellation is not a matter of discretion,
it is a matter of right. This important distinction does not seem
to be understood in all LAs. Adjudicators commonly see "discretion"
used in correspondence in a context where cancellation would be
a matter of right; for example relating to exemptions such as
loading.
14. Local Authorities should review the adequacy
of the training their staff receive in considering and replying
to representations. (2001-02)
The standard of handling representations has
been a continuing source of concern to the Adjudicators. In their
2000-01 Report they said:
Adjudicators have continued to see large numbers
of cases in which the handling of the response by the Local Authority
to representations has been less than satisfactory. Some Authorities
deal with this process better than others, and some achieve a
high standard. However, there continues to be a worrying number
of cases where the response does not address the issues made in
the representations or does so inadequately or inaccurately.
We regret having to say that our current experience
still leaves us with the impression that in a significant number
of cases the standard in the handling of representations remains
well-below that which the public are entitled to expect and to
which Local Authorities should aspire—indeed, have a duty
to provide. Against this background, the question that concerns
us is how many people give up having had their representations
rejected when in fact they have well-founded grounds for contesting
liability. It is obvious that the poor handling of representations
can be highly prejudicial to the legal entitlements of the public.
It is incumbent on all Local Authorities to satisfy themselves
that their procedures and practices ensure that representations
are properly considered and fairly and correctly dealt with.
It is also crucial that the Notice of Rejection
served on the motorist explains the reasons for rejection. In
their 2002-03 Report the Adjudicators said:
It is this notice that informs the motorist
that the Local Authority does not accept his representations and
triggers his right to appeal to the Adjudicator. As the `Guidance
on Decriminalised Parking Enforcement Outside London' says (paragraph
14.25),
"The notice of rejection should also contain
the authority's reasons for rejecting the representation. This
is not just a courtesy to the motorist. Experience in London suggests
that it also reduces the number of cases taken to adjudication
by frustrated motorists."
We endorse these comments, but would add
that giving a specific response to the points raised in the representations
is more than just a courtesy, important though that is; it is
also an element in fair dealing. For if the motorist does not
receive an explicit, reasoned response to his points, how is he
to make an informed judgement whether to appeal?
The Notice of Rejection should, of course, deal
with both the legal grounds and mitigation.
In the Adjudicators view training is absolutely
central to ensuring a proper standard of service. It is perhaps
surprising that there are no required standards of training either
for parking attendants or for LAs in house staff dealing with
representations.
15. Local Authorities should have in place
procedures, including taking appropriate advice, to ensure that
their enforcement processes are legally compliant. (2002-03)
In their report, the Adjudicators drew attention
to a number of cases that seem to be evidence of a lack of understanding
of the Authorities legal obligations or insufficient rigour in
applying them. As I said in my decision in Al's Bar and Restaurant
v Wandsworth (PATAS Case No 2020106430):
The Parking Adjudicators have had cause in
their annual report on more than one occasion to comment on procedural
irregularities that have come to their attention in appeals. The
motoring public deserves nothing less than that the public authorities
exercising penal powers understand the importance of their complying
with the conditions attached to their powers and are scrupulous
about having in place administrative processes that do so.
16. When replying to informal representations
received within the 14-day discount period, all Local Authorities
should offer a further 14 days from the reply for payment of the
reduced penalty. (2001-02)
This is a practice that we know many LAs follow.
In the Adjudicators' view it is excellent practice and we commend
it. Indeed, we have seen PCNs which state that if the motorist
queries liability within 14 days the LA will re-offer payment
at the reduced rate if they reject these informal representations.
This is a commendable approach.
17. Local Authorities consider as a matter
of routine sending copies of the video stills with the Penalty
Charge Notice in camera enforcement cases, to encourage early
resolution. (2001-02)
We know that some LAs do this and we commend
it to all authorities. It encourages early resolution because
it presents this visual evidence to the motorist. Early resolution
saves time and cost and is as much in the interests of the LA
as the motorist.
Indeed, photographic evidence in general is
of great value to the Adjudicators. Many appeals turn on factual
disputes which photographs would help to resolve: for example,
those common cases where the motorist says that he found no PCN
on the vehicle. The Adjudicators welcome the fact that some LAs
are supporting on street enforcement by providing their parking
attendants with cameras to take photographs as evidence of contraventions.
OTHER MATTERS
18. Controlled Parking Zones
This is a particular aspect of signing that
continues to give us cause for concern.
In a CPZ the basic no waiting times are shown
on signs at entrances to the zone. Single yellow lines in the
zone are then not required to have a yellow sign showing the times
that apply to it provided they are the same as on the entry signs.
Adjudicators frequently hear appeals from motorists
who have parked on a single yellow line, often outside what are
generally perceived as the "normal" hours of enforcement
(eg Monday to Friday 8.30 am to 6.30 pm), but say they were unable
to find a sign near the yellow line in order to establish if it
was in fact safe to do so. They often grasp the concept of the
CPZ for the very first time only when the Adjudicator explains
it.
Of course, all motorists should be familiar
with the regime from the Highway Code, although the explanation
is cursory. However, the CPZ regime is difficult to operate even
for those who understand it. It requires them to see and read
signs on the move, and retain that information until they park—even
if at the time they passed the sign they had no intention of parking
in the zone. Zones are often large; and in London a motorist may
well pass in and out of a series of adjacent zones, all with differing
times of restriction. It is easy to miss the signs. The entry
signs may well be a considerable distance away. The practicality,
therefore, is that when a motorist decides to park on a single
yellow line in a CPZ, it is difficult for even the most assiduous
motorist to be confident whether it is lawful to park.
Adjudicators appreciate that CPZs were intended
to reduce the "clutter" created by numerous signs. They
accept they may well be effective in, eg a small town, where there
is a single zone in the town centre, but in applying them to a
large conurbation like London there are difficulties that can
lead to unfairness to motorists.
Adjudicators can also see that CPZs might provide
legitimate administrative advantages for LAs, and be useful for
identifying, eg particular zones for the purpose of permit parking,
However, that is a different issue from that of where information
about restrictions should be provided for motorists. The Adjudicators
take the view that the information should be provided at the location,
not just some distance away on entry signs.
The Adjudicators accordingly consider that the
signing requirements for the CPZ regime should be reviewed. It
should in any event should be noted that the existing law does
not prevent LAs from putting up signs since it does not prohibit
LAs from placing individual signs; it merely lifts the requirement
to do so.
19. Innovative Payment Schemes
A few months ago the Adjudicators had a presentation
of a system that allows motorists to make use of all manner of
parking arrangements using a payment card linked to an account
using their mobile telephone. We were told the system was operating
in Putney. It seemed to us that the system appeared to have a
great deal to commend it, not least in improving motorists perception
of the parking regime by providing them with a convenient and
flexible means of payment and reducing the likelihood of motorists
finding themselves in contravention. We understand that a number
of LAs are considering schemes of this sort.
September 2005
1 So decided in R (Westminster) v The Parking Adjudicator
[2003] RTR 1. However, in R (Walmsley) v PATAS (2005) the court
held, on similarly worded legislation but without Westminster
being cited, that a congestion charging adjudicator could allow
an appeal for mitigation. This decision is subject to a pending
appeal to the Court of Appeal. Back
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